Artist Chapman Kelley
Chapman Kelley will now seek an appeal with the US Supreme Court
NEW YORK. The Chicago federal appeals court that denied an artist's rights claim for damage to a work made of living wildflowers has refused to rehear the case. On 19 April, the same three judges who threw out the case in February said they would not reconsider the claim by artist Chapman Kelly against the Chicago parks district for allegedly destroying his huge plant composition in a public park, Wildflower Works. Kelley's lawsuit cited violations of artist's rights protections under the US Visual Artists Rights Act (Vara), which is part of US copyright law.
Kelley says, the court was wrong in declining to award him more than one dollar for his loss of the art, on a theory that there was no evidence of how much it would have cost him to remove the flowers. The destroyed wildflowers had a value of $825,000, the artist says, and the city should pay him that. He says it was the city's duty to prove otherwise, and that his "army of volunteers" would have happily removed the flowers at no cost if he had been given the chance.
The Chicago Park District disagrees with Kelley. It is arguing that his work is not protected under Vara, and that he should receive no compensation for the loss of the wildflowers. The February ruling said that to be protected by Vara, a work must meet basic copyright tests which Wildflowers failed: the living wildflowers change over time, and are not "fixed" as copyright law requires. The February ruling noted that Vara protects only a few categories of works such as paintings and sculpture, and said that a garden of living plants met none of these definitions.
Reacting to the court's decision not to rehear the case, John Viramonte, of the Council for Artists Rights in Chicago, said that the February ruling "created an adverse precedent for US artists who use organic material to make their art," impacting not just Kelley but also "the broader US arts community and the rights of painters and sculptors." He told The Art Newspaper that Mr Kelley will now proceed to seek an appeal with the US Supreme Court.